Detention of a Person Already in Custody
Chapter Thirty-Six
Syllabus topic 2, "Preventive Detention and Indian Constitution"
Pages 162 to 165 of 657
In one line
A person in custody may be detained, but only if the authority knew he was in custody, had reason to believe he would probably get bail and would probably then act prejudicially, and thought detention essential to stop him.
In the wording a student can write in an exam: even in the case of a person in custody a detention order can validly be passed if three conditions are satisfied. First, the authority passing the order is aware of the fact that he is actually in custody. Secondly, it has reason to believe on the basis of reliable material placed before it that there is a real possibility of his being released on bail, and that on being so released he would in all probability indulge in prejudicial activity. Thirdly, it is felt essential to detain him to prevent him from so doing.
Why there is a problem at all
Because a detention order is preventive. If the man is already in jail, he is already prevented, and there is nothing left for the order to do. An order made in that situation looks like an order made for a different purpose: to keep him inside when a court might let him out, which is punishing him for the prospect of bail rather than preventing future conduct.
The law's answer is not to forbid such orders but to require the authority to confront that objection on the face of its satisfaction. The three conditions are how it does so.
The leading case
Kamarunnissa v. Union of India, AIR 1991 SC 1640.
Facts. Three men were intercepted at Sahar International Airport on 5 October 1989 by officers of the Directorate of Revenue Intelligence and searched on suspicion, and diamonds, precious stones and foreign currency they had planned to smuggle out were recovered. They were arrested and were in jail custody on remand. On 10 November 1989 orders of detention under section 3(1) of COFEPOSA 1974 were made against each of them with a view to preventing them from smuggling goods, and the orders and grounds were served on them in jail on 21 November 1989. On 20 December 1989 declarations under section 9(1) of the Act were made and served in time. Their wives filed habeas corpus petitions in the Bombay High Court raising four contentions: that the detention was unwarranted because the detenus were in custody; that the detaining authority had shown non-application of mind by describing the offence as bailable; that a representation of 18 December 1989 had not been disposed of promptly; and that certain crucial documents called for had not been supplied, depriving them of an effective representation.
Held. Even in the case of a person in custody a detention order can validly be passed if the three conditions set out above are satisfied. On documents, it is not sufficient to say that copies were not supplied in time on demand: it must further be shown that the non-supply has impaired the detenu's right to make an effective and purposeful representation. A demand for any and every document, however irrelevant, merely because there is a reference to it in the grounds of detention, cannot vitiate an otherwise legal detention order; no hard and fast rule can be laid down, but what is essential is that the detenu must show that the failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however slight or insignificant.
Detention of a Person Already in Custody
Why it matters here. It states the three conditions in a form that can be applied, and its second holding qualifies the document rule in [The Documents Relied On, and the Right to an Effective Representation] in an important way: prejudice matters.
The three conditions, applied
1. Awareness of the custody. The order or the grounds must show that the authority knew the man was in jail. An order that reads as though he were at large discloses no application of mind to the very fact that makes the order questionable.
2. Real possibility of release, and probability of prejudicial activity on release. Two limbs, both to be founded on reliable material placed before the authority. It is not enough to say that bail applications are usually granted. There must be material, and the belief must be about this man.
3. Detention felt essential. The authority must have concluded that nothing short of a detention order will answer the case.
An order that satisfies none of these is bad. An order that recites all three formulaically, with nothing in the material to support them, is bad for non-application of mind, on which see [Non-Application of Mind, and the Mechanical Order].
How this fits the two competing lines
Students often meet two apparently opposed propositions: that a detention order cannot be made against a person in custody, and that it can. Both come from real cases, and the reconciliation is Kamarunnissa.
The proposition that it cannot be made is a shorthand for the case where the authority did not know of the custody, or gave no thought to bail, or used the order as a substitute for opposing bail. The proposition that it can be made is a shorthand for the case where the three conditions are satisfied.
The correct statement of the law is the three conditions, and an answer that gives them will not be caught out by either shorthand.
Detention of a Person Already in Custody
The prejudice qualification on documents
Kamarunnissa's second holding is worth separating out because it is frequently misapplied in both directions.
What it does not do. It does not weaken the rule in Lallubhai Jogibhai Patel v. Union of India, AIR 1981 SC 728, that documents and materials relied on must be supplied.
What it does. It answers the different argument that any document mentioned anywhere in the grounds must be supplied on pain of invalidity. The detenu must show that the failure impaired or prejudiced his right to make an effective and purposeful representation, and the test moment is before the meeting of the Advisory Board.
How to state both. Documents relied on must be supplied; a complaint about non-supply succeeds where the omission impaired the representation, and the threshold of prejudice is low, however slight or insignificant.
A worked example
Salim is arrested on 3 May and remanded to judicial custody in a case under the customs law. On 12 May a detention order under COFEPOSA is served on him in jail. The grounds recite the seizure, state that he is in judicial custody, and add: "It is noted that the offence is bailable and that in similar cases bail has been granted, and there is every likelihood of his being released and resuming his activities."
Condition one? Satisfied. The grounds say he is in custody.
Condition two? Partly. The reference to bail in similar cases is thin, and the second limb, that this man would in all probability resume prejudicial activity, needs material about him. If the file contains his earlier involvement, that will do; if it contains nothing, the order is vulnerable.
Condition three? The grounds should say why nothing short of detention will answer, for example that opposing bail has failed before.
And the non-application of mind point? In Kamarunnissa itself the detenus argued that describing the offence as bailable showed non-application of mind. Whether such a description betrays a failure of mind depends on whether it is accurate on the facts, and the argument is one to make on the material rather than in the abstract.
What it does NOT mean
It does not mean an order may be made whenever a bail application is pending. The material must show a real possibility of release and a probability of prejudicial activity thereafter.
It does not turn on the outcome of the bail application. The question is the state of the authority's satisfaction when the order was made.
It does not authorise detention as a means of defeating a bail order. That is the very abuse the three conditions exist to expose.
It does not dilute the document rule. It adds a requirement of prejudice to a complaint about non-supply.
Detention of a Person Already in Custody
Quick revision
- Kamarunnissa v. Union of India, AIR 1991 SC 1640. Three conditions for detaining a person already in custody: awareness of the custody; reason to believe on reliable material that there is a real possibility of release on bail and that on release he would in all probability indulge in prejudicial activity; and that detention is felt essential to prevent it.
- Second holding: non-supply of documents must be shown to have impaired the right to make an effective and purposeful representation; a demand for any and every document merely because it is referred to in the grounds does not vitiate an otherwise legal order; the test moment is before the meeting of the Advisory Board; and the prejudice may be slight.
- The two shorthand propositions, that such an order cannot and can be made, are reconciled by the three conditions.
Test yourself
1. Give the three conditions. Awareness that the person is actually in custody; reason to believe on reliable material that there is a real possibility of release on bail and that on release he would in all probability indulge in prejudicial activity; and that it is felt essential to detain him to prevent that.
2. Is a bare recital that the detenu is in custody enough? No. The recital satisfies the first condition only, and the second and third must be founded on reliable material placed before the authority.
3. What did Kamarunnissa add about documents? That non-supply must be shown to have impaired the detenu's right to make an effective and purposeful representation, and that a demand for any and every document merely because it is referred to in the grounds cannot vitiate an otherwise legal order.
4. By what moment must the documents have been supplied on that test? Before the meeting of the Advisory Board.
5. Why is such an order suspect in principle? Because a man already in jail is already prevented, so an order made in that situation invites the inference that its purpose is to defeat bail rather than to prevent future conduct.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.